Susan Parker, et al v. Wal-Mart Stores, Inc.

Filing

UNPUBLISHED OPINION FILED. [10-60236 Affirmed] Judge: CDK , Judge: FPB , Judge: JWE. Mandate pull date is 01/03/2011 [10-60236]

Susan Parker, et al v. ase: 10-60236 Inc. CWal-Mart Stores, Document: 00511319733

Page: 1 Date Filed: 12/13/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 13, 2010 N o . 10-60236 S u m m a r y Calendar Lyle W. Cayce Clerk

S U S A N MICHELE PARKER; CARL GREGG PARKER, P la in t iffs - Appellants v. W A L -M A R T STORES, INCORPORATED, D e fe n d a n t - Appellee

A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 3:05-CV-768

B e fo r e KING, BENAVIDES and ELROD, Circuit Judges. P E R CURIAM:* P la in t iffs - Appellants, Susan Parker and Carl Parker, sued Defendant Appellee, Wal-Mart Stores, after Mrs. Parker injured herself while stepping o n to a curb in Wal-Mart's parking lot. After the district court granted summary ju d g m e n t in favor of Wal-Mart, the Parkers moved for relief from the judgment u n d e r FEDERAL RULE OF CIVIL PROCEDURE 60(b). The district court denied the P a r k e r s ' motion. We affirm.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 10-60236 I . Factual and Procedural Background O n September 30, 2003, Susan Michelle Parker went to purchase party s u p p lie s at the Flowood, Mississippi Wal-Mart. Mrs. Parker alleges a crack in t h e curb in front of that Wal-Mart caused her to fall and break her ankle. M r s . Parker brought an action against Wal-Mart in Mississippi state court s e e k in g actual and punitive damages under Mississippi premises liability law. Mr. Parker also asserted a claim against Wal-Mart for loss of consortium. Shortly thereafter, Wal-Mart removed the action to the United States District C o u r t for the Southern District of Mississippi on the basis of diversity ju r is d ic t io n . T h e Parkers served Wal-Mart with interrogatories and requests for p r o d u c t io n regarding Wal-Mart's safety policies at the time of Mrs. Parker's a c c id e n t.1 The Parkers claim that, in response to their discovery requests, WalM a r t produced "Slip, Trip, and Fall Guidelines" dated September 16, 2004 ("2004

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The relevant interrogatories read:

INTERROGATORY NO. 1: Please state in detail what Wal-Mart's policies and procedures are that their agents, employees or representatives are to follow when they discover a condition on the premises which could rise to injury. .... INTERROGATORY NO. 6: Please state whether Wal-Mart had any procedures for regular inspection of the condition of the premises at the time of the occurrence in question? If so, please describe. The relevant request for production of documents read: REQUEST NO. 5: Please produce copies of any rules, management guidelines, operating guidelines, or other similar writing or document that purports to show operating procedures for the management, care, maintenance, repair, and service of the premises in question.

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No. 10-60236 G u id e lin e s " ), which post-dated Mrs. Parker's accident. These guidelines require W a l-M a r t employees to "[e]nsure the parking lot is free from . . . cracked sidewalks and curbs" and to "[a]lert a salaried member of management when t h e s e items are in need of repair." O n February 28, 2007, the district court granted Wal-Mart's motion for s u m m a r y judgment, reasoning the curb was not an unreasonably unsafe c o n d itio n as a matter of law. The Parkers appealed, and this court affirmed. D u r in g the pendency of their appeal, the Parkers obtained a copy of WalM a r t 's August 2003 "Slip, Trip, and Fall Guidelines" ("2003 Guidelines"), which c o n t a in e d identical language to the 2004 Guidelines. The Parkers filed a motion b e fo r e this court to supplement the record with the 2003 Guidelines. Shortly a ft e r that motion was filed, however, they voluntarily withdrew it after WalM a r t notified the Parkers that the 2004 Guidelines were in effect at the time of M r s . Parker's injury. In withdrawing the motion, the Parkers directed this court t o treat the 2004 Guidelines as evidence of Wal-Mart's negligence. A fte r this court affirmed the district court's order granting Wal-Mart's m o t io n for summary judgment, the Parkers filed a Rule 60(b) motion in the d is t r ic t court. The Parkers argued their claim would have survived Wal-Mart's s u m m a r y judgment motion had Wal-Mart properly produced the 2003 G u id e lin e s . T h e district court denied the Parkers' Rule 60(b) motion. The court held the 2003 Guidelines would not have changed the outcome of its ruling on WalM a r t 's motion for summary judgment. The district court held that the Parkers w e r e not entitled to relief under Rule 60(b) because they had not proven either t h a t Wal-Mart improperly withheld the 2003 Guidelines or that this withholding

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No. 10-60236 h a d prevented them from fully and fairly presenting their case. I I . Analysis A . Standard of Review W e review a district court's denial of a Rule 60(b) motion for relief from a fin a l judgment or order for abuse of discretion. Seven Elves, Inc. v. Eskenazi, 635 F .2 d 396, 402 (5th Cir. Unit A Jan. 1981). B . Waiver A s a preliminary matter, Wal-Mart argues that the Parkers waived review o f the district court's denial of their Rule 60(b) motion because they characterize t h e ir appeal as seeking review of the district court's order granting summary ju d g m e n t , which this court has already affirmed. Wal-Mart correctly contends the issue for review is denial of the Parkers' Rule 60(b) motion and that our r e v ie w will therefore necessarily "be narrower in scope than review of the u n d e r ly in g order of dismissal." Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 3 8 6 (5th Cir. 1978). T h e Parkers' discussion of the actual merits of their appeal remains la r g e ly unchanged from their properly pleaded Rule 60(b) motion below. Therefore, this court will address the merits of the Parkers' appeal. C . Rule 60(b)(2) Relief T h e Parkers argue they are entitled to relief under Rule 60(b)(2) because t h e y did not obtain a copy of the 2003 Guidelines until after the district court h a d granted Wal-Mart's motion for summary judgment. Rule 60(b)(2) allows for r e lie f from a final judgment based on "newly discovered evidence that, with r e a s o n a b le diligence, could not have been discovered in time to move for a new t r ia l under Rule 59(b)." The Parkers must therefore demonstrate: "(1) that

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No. 10-60236 [t h e y ] exercised due diligence in obtaining the [2003 Guidelines]; and (2) that the e v id e n c e is material and controlling and clearly would have produced a different r e s u lt if present before the original judgment." Helsing v. CSX Transp., Inc., 396 F .3 d 632, 639 (5th Cir. 2005). Because we conclude the Parkers have failed to p r o v e the 2003 Guidelines were material and controlling, we need not decide w h e t h e r the Parkers exercised due diligence in obtaining the 2003 Guidelines. See id. at 641 (addressing only whether evidence was material to determination o f the case below). E a r lie r production of the 2003 Guidelines would not have resulted in d e n ia l of Wal-Mart's motion for summary judgment. As a business invitee, WalM a r t owed Mrs. Parker a duty to "keep the premises reasonably safe, and when n o t reasonably safe, to warn only where there is hidden danger or peril that is n o t in plain and open view." Massey v. Tingle, 867 So. 2d 235, 239 (Miss. 2004) (c it a t io n and internal quotation marks omitted). As noted above, both this court a n d the district court have previously held that Wal-Mart's curb was not an u n r e a s o n a b ly dangerous condition as a matter of law. Therefore, the Parkers' a r g u m e n t hinges on whether the 2003 Guidelines establish an independent basis fr o m which a jury could conclude that Wal-Mart breached the duty of care owed t o invitees by not complying with its own internal policies. U n d e r Mississippi law, "breach of one's internal policies may be considered in determining whether one has exercised the appropriate standard of care." Boyd Tunica, Inc. v. Premier Transp. Servs., Inc., 30 So. 3d 1242, 1253 (Miss. Ct. A p p . 2010). As the district court correctly noted, however, internal policies are o n ly one consideration among many in that determination. See Steele v. Inn of V ic k s b u r g , 697 So. 2d 373, 377 (Miss. 1997) (affirming denial of judgment

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No. 10-60236 n o tw it h s t a n d in g a verdict in defendant's favor despite "ample evidence" of d e fe n d a n t 's violation of its internal safety policies). T h e production of the 2003 Guidelines would not have changed the o u tc o m e of the Parkers' opposition to Wal-Mart's motion for summary judgment. The Parkers' supported their failed opposition to Wal-Mart's motion for s u m m a r y judgment with an expert affidavit evaluating Wal-Mart's fault, which c o n c lu d e d Wal-Mart had breached its duty of care based, in part, on its failure t o comply with the 2004 Guidelines. Moreover, the expert's opinion would not h a v e changed if it had been based on the 2003 Guidelines, rather than the 2004 G u id e lin e s , because the language in both sets of guidelines is identical. Thus, t h e district court was fully able to evaluate the import of Wal-Mart's internal p o lic ie s at summary judgment and nevertheless granted summary judgment in fa v o r of Wal-Mart. A d d it io n a lly , we are not aware of any cases in which a party's violation of it s own internal safety policies established a dangerous condition per se. Accordingly, the district court did not abuse its discretion in denying the P a r k e r s ' Rule 60(b)(2) motion. D . Rule 60(b)(3) Relief T h e Parkers next argue that they are entitled to relief under Rule 60(b)(3) b e c a u s e Wal-Mart engaged in misconduct by failing to produce the 2003 G u id e lin e s in response to a discovery request. Rule 60(b)(3) allows for relief fr o m a final judgment in the event of "fraud . . . misrepresentation, or other m is c o n d u c t of an adverse party." A party is entitled to relief under Rule 60(b)(3) if: "(1) the adverse party engaged in fraud or misconduct, and (2) . . . this m is c o n d u c t prevented the moving party from fully and fairly presenting his

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No. 10-60236 c a s e ." Helsing, 396 F.3d at 641. The movant must prove misconduct by clear a n d convincing evidence. Id. 1 . Misconduct T h e Parkers have failed to establish by clear and convincing evidence that W a l-M a r t improperly withheld the 2003 Guidelines. This court has previously h e ld that the failure to produce documents that are responsive to interrogatories a n d discovery requests, when coupled with awareness of those documents, e s t a b lis h e s misconduct. See Rozier v. Ford Motor Co., 573 F.2d 1332, 1341­42 (5 t h Cir. 1978). T h e Parkers' have not proven that Wal-Mart withheld the relevant g u id e lin e s . After the Parkers moved to supplement the record with the 2003 G u i d e lin e s , Wal-Mart notified the Parkers that the 2004 Guidelines were, c o n s is t e n t with the Parkers' discovery request, the guidelines in force at the time o f Mrs. Parker's injury. At no stage of litigation did Wal-Mart argue that the g u id e lin e s from which the Parkers' expert concluded Wal-Mart had violated its s t a n d a r d of care were not applicable at the time of the accident. Wal-Mart ought n o t be penalized for the Parkers' supposition, without further investigation, that t h e produced guidelines did not comply with the discovery request. T h e fact that Wal-Mart also sought to rectify any faulty production to the P a r k e r s also militates against finding misconduct on its part. See id., 573 F.2d a t 1342 (finding misconduct, in part, because counsel did not make efforts to r e c t ify incorrect interrogatory answers upon discovery of requested documents). 2 . Full and Fair Presentation A s a final matter, the Parkers have not proven that Wal-Mart's failure to p r o d u c e the 2003 Guidelines prevented them from fully and fairly presenting

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No. 10-60236 t h e ir case. The Parkers argue that they were prejudiced by Wal-Mart's failure t o produce the 2003 Guidelines because they were unable to argue that WalM a r t had violated its internal safety policies at the time of Mrs. Parker's injury. See Rozier, 573 F.2d at 1342 ("Inevitably, information developed in the discovery s t a g e s of the case influenced the decision as to which theories would be e m p h a s iz e d at trial."). We disagree. T h e 2003 and 2004 Guidelines contain identical language regarding curb m a in t e n a n c e . Based on that language, derived from the 2004 Guidelines, the P a r k e r s developed expert testimony on Wal-Mart's standard of care and breach o f that standard of care. The Parkers supported their opposition to Wal-Mart's m o t io n for summary judgment with an expert affidavit concluding Wal-Mart b r e a c h e d its standard of care based on those same guidelines, which the Parkers n o w contend were not applicable at the time of the accident. Finally, the

P a r k e r s directed this court, after withdrawing their motion to supplement the r e c o r d when appealing the district court's grant of summary judgment, to treat t h e 2004 Guidelines as evidence of Wal-Mart's negligence. Wal-Mart's

p r o d u c t io n of the 2004 Guidelines clearly did not make "a difference in the way [t h e Parkers'] counsel approached the case or prepared for trial." Id. (citation a n d internal quotation marks omitted). The district court did not abuse its d is c r e t io n in denying the Parker's Rule 60(b)(3) motion. I I I . Conclusion F o r the above reasons, we AFFIRM.

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